¶2On May 10, 1999, Eggenberger was charged with three counts of
first-degree sexual assault of a child.The victim was Eggenberger’s ten-year-old step-granddaughter.Eggenberger did not present any evidence at
trial, choosing instead to put the State to its burden of proof.The jury found Eggenberger guilty of all
three charges.

¶3At the sentencing hearing, Eggenberger, represented by a new
attorney, argued the assaults he committed were out of character and were
caused by his use of the medication Prozac, which had been prescribed to treat
his posttraumatic stress disorder.Eggenberger relied on a report authored by forensic psychiatrist George
Palermo, who explained that Prozac “at times … causes mental confusion and
excitement.It has been thought by some
experts to precipitate suicide, especially when combined with a benzodiazepine
[a type of anti-anxiety medication Eggenberger was also taking] and
alcohol.”Palermo opined that
Eggenberger’s “molestation of his granddaughter … may be the outcome of the
disinhibiting, confusion-producing action of Prozac[.]”

¶4The court sentenced Eggenberger to an indeterminate
twenty-year prison term on count one.On
counts two and three, sentence was withheld and Eggenberger received two
twenty-year terms of probation, concurrent to one another but consecutive to
his sentence on count one.Eggenberger
moved for resentencing, arguing the sentencing court violated his right to due
process by considering certain letters from the victim’s extended family.The court denied Eggenberger’s motion.

¶5After retaining a third attorney, Eggenberger filed a direct
appeal.He argued the trial court erred
by admitting hearsay statements and statements he made to law enforcement after
invoking his right to counsel.He also
renewed his argument that the sentencing court erroneously considered letters
from the victim’s family.We affirmed
Eggenberger’s conviction, and the supreme court denied his petition for review.

¶6On February 24, 2009, Eggenberger moved for sentence
modification, pursuant to Wis. Stat. § 974.06.Now represented by a fourth attorney, Robin
Shellow, Eggenberger argued that new research into Prozac’s negative side
effects constituted a new factor warranting sentence modification.He relied on new reports by psychologists Ann
Blake Tracy and R. Bronson Levin to support his contention that his use of
Prozac, along with alcohol and an anti-anxiety medication, made him
disinhibited and confused, which “caused his out-of-character conduct with [the
victim] and his inability to recall or admit it.”Eggenberger also argued he had been
sentenced based on inaccurate information.The circuit court denied Eggenberger’s motion, and we affirmed the
court’s decision.

¶7Eggenberger subsequently retained a fifth attorney.On December 2, 2011, he filed another Wis. Stat. § 974.06 motion, this
time seeking a new trial based on newly discovered evidence.[2]As newly discovered evidence, Eggenberger
cited “the same evidence that was the basis of [the earlier] motion to modify
sentence—the [e]ffects that the prescribed medication Prozac combined with [an
anti-anxiety medication] had on Mr. Eggenberger and the extent to which it
impacted his behavior.”He contended
this evidence would have changed the outcome of his trial because it would have
allowed his attorney to present an involuntary intoxication defense.

¶8In response, the State argued Eggenberger’s motion was
procedurally barred by Wis. Stat. § 974.06(4)
because Eggenberger could have raised his newly discovered evidence argument in
his prior postconviction motion.In
reply, Eggenberger asserted he had a sufficient reason for failing to raise his
newly discovered evidence claim because Shellow, his previous postconviction
attorney, was ineffective.Following a
hearing, the circuit court assumed, without deciding, that Shellow had provided
ineffective assistance.However, the
court concluded Eggenberger’s newly discovered evidence claim failed on the
merits because it was not reasonably probable a new trial would produce a
different result.Eggenberger now
appeals.

DISCUSSION

I. Eggenberger’s motion was procedurally barred

¶9Wisconsin Stat. § 974.06
permits collateral review of a defendant’s conviction based on errors of
jurisdictional or constitutional dimension. SeeState
v. Johnson, 101 Wis. 2d 698, 702, 305 N.W.2d 188 (Ct. App. 1981).However, the defendant must raise “[a]ll
grounds for relief available to [him or her] under [§ 974.06] … in his or
her original, supplemental or amended motion.”Wis. Stat. § 974.06(4).A defendant may avoid this procedural bar by
showing that he or she had a “sufficient reason” for failing to raise a claim
in a previous postconviction motion or appeal. Id.; see alsoState v. Escalona-Naranjo, 185 Wis. 2d
168, 181-82, 517 N.W.2d 157 (1994).Whether
a defendant has provided a sufficient reason for failing to raise a claim is a
question of law that we review independently. State v. Kletzien, 2011 WI App 22, ¶16,
331 Wis. 2d 640, 794 N.W.2d 920.

¶10It is undisputed that Eggenberger could have raised his newly
discovered evidence argument in his 2009 postconviction motion.In the circuit court, Eggenberger argued he
had a sufficient reason for failing to raise the argument because Shellow was
ineffective. Ineffective assistance of postconviction counsel may
provide a sufficient reason for a defendant’s previous failure to raise a
claim.State ex rel. Rothering v.
McCaughtry, 205 Wis. 2d 675, 682, 556 N.W.2d 136 (Ct. App.
1996).However, a defendant has a right
to effective assistance of counsel only in those proceedings where the right to
counsel is constitutionally guaranteed.SeeColeman v. Thompson, 501 U.S. 722,
752 (1991).A defendant does not have a
constitutional right to counsel in a postconviction proceeding under Wis. Stat. § 974.06.State ex rel. Warren v. Schwarz, 219
Wis. 2d 615, 649, 579 N.W.2d 698 (1998); see also Pennsylvania v. Finley,
481 U.S. 551, 555 (1987) (right to counsel extends only to first appeal of
right and does not extend to a collateral attack on a conviction).Consequently, a defendant has no right to effective assistance of counsel in the
context of a § 974.06 motion.

¶11Because Eggenberger had no right to effective assistance of
counsel in the 2009 postconviction proceedings, he cannot establish an
ineffective assistance claim based on Shellow’s performance.Accordingly, the State contends Shellow’s
performance cannot constitute a sufficient reason for failing to raise the
newly discovered evidence claim because there is “no legal authority … deeming
counsel’s performance in an earlier proceeding a ‘sufficient reason’ absent a
constitutional [ineffective assistance] claim.”Eggenberger fails to respond to this argument, and we therefore deem it
conceded.SeeCharolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d
97, 108‑09, 279 N.W.2d 493 (Ct. App. 1979).Aside from Shellow’s performance, Eggenberger
does not argue he had any other reason for failing to raise the newly
discovered evidence claim in 2009.As a
result, we conclude he was procedurally barred from raising that claim in his
2011 motion.

¶12Moreover, even if Eggenberger had a right to effective
assistance of counsel in the 2009 proceedings, Shellow was not ineffective by
failing to raise the newly discovered evidence claim.To prove ineffective assistance, a defendant
must show both that counsel’s performance was deficient and that the deficiency
prejudiced the defense.Strickland
v. Washington, 466 U.S. 668, 687 (1984).To demonstrate deficient performance, the
defendant must show that counsel’s actions or omissions “fell below an
objective standard of reasonableness.”Id.
at 688.To demonstrate prejudice, “[t]he
defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.If a defendant fails to satisfy one prong of this
analysis, we need not address the other. Id. at 697.The ultimate issue of whether a defendant
received ineffective assistance is a question of law that we review
independently.State v. Johnson, 153
Wis. 2d 121, 128, 449 N.W.2d 845 (1990).

¶13Eggenberger argues Shellow performed deficiently by failing to
argue that the Tracy and Levin reports, along with new research on Prozac’s
side effects, constituted newly discovered evidence entitling him to a new
trial.He contends that, had this
evidence been available at his original trial, it would have allowed him to
present an involuntary intoxication defense, which would likely have prompted
the jury to acquit him.We disagree.Eggenberger has failed to establish that the
proffered evidence would have supported a viable involuntary intoxication
defense.

¶14“An intoxicated or drugged condition of the actor is a defense
only if such condition … [i]s involuntarily produced and renders the actor incapable
of distinguishing between right and wrong in regard to the alleged criminal act
at the time the act is committed[.]”Wis. Stat. § 939.42(1).To receive a jury instruction on involuntary
intoxication, Eggenberger would have had to produce “some evidence that his
intoxication … affected his ability to distinguish right from wrong.”SeeState
v. Gardner, 230 Wis. 2d 32, 45, 601 N.W.2d 670 (Ct. App.
1999).In his appellate briefs,
Eggenberger asserts:

·“[I]t was unknown at the time of the offense that
Mr. Eggenberger’s use of the prescribed Prozac could cause severe
psycho-somatic reactions.”

·The prescribed medications “had an adverse
[e]ffect on [Eggenberger]” and “caused [him] to lack judgment and affected his
behavior.This extreme and inadvertent
lack of judgment led to the commission of this crime[.]”

·Taking Prozac “lowered [Eggenberger’s]
inhibitions and caused him to be confused[.]”

·Tracy’s report and testimony “support[ed] the
conclusion that Mr. Eggenberger was essentially poisoned by the dose of
Prozac he was prescribed.”

·Eggenberger did not know his medications would
cause “the Serotonin Syndrome described by Dr. Tracy.”

·Around the time of the offenses, Eggenberger
“displayed strange behavior” that made his wife think he was developing
“dementia,” but Tracy explained this behavior was a symptom of “Prozac
poisoning.”

·Tracy testified the elderly are particularly at
risk for adverse reactions to Prozac.

These assertions
do not provide any evidence that Eggenberger’s medications made him unable to
distinguish between right and wrong with respect to the sexual assaults of his
step-granddaughter.Eggenberger does not
define the terms “psycho-somatic reactions,” “Serotonin Syndrome,” and “Prozac
poisoning” or suggest that these conditions affect a person’s ability to tell
right from wrong.At most, Eggenberger
has shown that his medications “caused [him] to lack judgment” and lowered his
inhibitions.This is insufficient to
support an involuntary intoxication defense.

¶15Because Eggenberger’s new evidence would not have supported an
involuntary intoxication defense, Shellow did not perform deficiently by
failing to raise a newly discovered evidence claim in the 2009 postconviction
motion.SeeState v. Tolliver, 187 Wis. 2d 346, 360, 523 N.W.2d 113
(Ct. App. 1994) (counsel does not perform deficiently by failing to make a
meritless argument).Thus, even if we
assume Eggenberger had a right to effective assistance in the 2009 proceedings,
he has not shown that Shellow was ineffective.He has therefore failed to present a sufficient reason for not raising
his newly discovered evidence claim in 2009.Consequently, he was procedurally barred from raising that claim in
2011.

II. Eggenberger’s motion fails
on the merits

¶16In addition, Eggenberger has not established that his proffered
evidence about Prozac’s negative side effects entitles him to a new trial.To obtain a new trial based on newly
discovered evidence, a defendant must prove, by clear and convincing evidence,
that:“(1) the evidence was discovered
after conviction; (2) the defendant was not negligent in seeking evidence; (3)
the evidence is material to an issue in the case; and (4) the evidence is not
merely cumulative.”State
v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707 (1997).If the defendant makes this showing, the circuit
court must determine whether there is a reasonable probability that a new trial
would produce a different result.Id.A reasonable probability of a different result
exists if there is a reasonable probability that a jury, looking at both the
old evidence and the new evidence, would have a reasonable doubt as to the
defendant’s guilt.State v. Plude, 2008 WI
58, ¶33, 310 Wis. 2d 28, 750 N.W.2d 42.

¶17We review a circuit court’s decision on the first four prongs
of the newly discovered evidence test for an erroneous exercise of
discretion.Id., ¶¶31-32.Whether there is a reasonable probability
that a new trial would produce a different result is a question of law that we
review independently.Id.,
¶33.Here, the circuit court determined
Eggenberger had satisfied the first four prongs of the test but had failed to
prove it was reasonably probable a new trial would produce a different
result.We agree with the circuit court
that Eggenberger failed to meet the final prong of the newly discovered
evidence test.However, we also conclude
Eggenberger failed to prove the second and third prongs by clear and convincing
evidence.

¶18With respect to the second prong, Eggenberger did not establish
he was not negligent in seeking the evidence.Eggenberger contends he could not have discovered the evidence before
his trial because “the main body of research” into Prozac’s side effects was
not developed until 2004.Yet, in our
decision affirming the denial of Eggenberger’s 2009 postconviction motion, we
explained that the “new factor” evidence at issue there (which Eggenberger
concedes is the same as the “newly discovered evidence” at issue here) was
essentially the same evidence Eggenberger presented at the sentencing
hearing.We also observed that, at the
hearing on Eggenberger’s 2009 motion, Tracy conceded that “‘roughly a decade of
research and … publication [on Prozac’s side-effects],’ including her own work,
existed before Eggenberger was sentenced.”Thus, Eggenberger’s own expert admitted that the basic evidence
Eggenberger now proffers as “newly discovered” was available before Eggenberger’s
trial.Aside from a conclusory assertion
that he “has actively pursued any and all research regarding the [e]ffects of
Prozac[,]” Eggenberger does not explain why he failed to discover this evidence
before he was convicted.He has
therefore failed to prove by clear and convincing evidence that he was not
negligent in seeking the evidence.

¶19Regarding the third prong, Eggenberger has not proven the
evidence is material to an issue in the case.Eggenberger argues the evidence is material because it would allow him
to present an involuntary intoxication defense.However, we have already concluded the evidence does not support an
involuntary intoxication defense because it does not show that Eggenberger was
incapable of distinguishing between right and wrong.See
supra, ¶14.Eggenberger does not
argue the evidence is material for any other reason.

¶20Finally, we agree with the circuit court that it is not
reasonably probable a new trial would produce a different result.Eggenberger argues that if the jury had heard
his new evidence about Prozac’s side effects, it would likely have acquitted
him based on his involuntary intoxication theory.As discussed above, Eggenberger’s evidence
does not support an involuntary intoxication defense.However, even if the jury had been instructed
on involuntary intoxication, there is no reasonable probability of a different
result because a crucial piece of evidence critically undermines Eggenberger’s
claim that his medications made him incapable of distinguishing between right
and wrong.

¶21On May 5, 1999, police recorded a telephone call between
Eggenberger and the victim.The
recording was played at trial, and a transcript of the conversation was
introduced into evidence.[3]During the conversation, the victim mentioned
that she was thinking about telling her parents Eggenberger touched her
inappropriately.Eggenberger told the
victim not to tell her parents because “[i]t will wreck the family.”The following exchange then took place:

[Victim]: You know when you were licking me
in the crotch and in the breasts?

Eggenberger: Yeah.

[Victim]: It made me feel bad.Why did you do that?

Eggenberger: It made you feel bad?

[Victim]: Hmmm-mmm.

Eggenberger: Well, I did it because I
thought it would make you feel good and you liked it.

[Victim]: But I didn’t.

Eggenberger: Ok, well then I apologize.I apologize.

Eggenberger
discouraged the victim from reporting the assaults to her family, telling her
he would go to jail for the rest of his life and her father would probably kill
him.He stated, “[I]f you love me …, you
won’t say anything to anybody.” When the victim informed Eggenberger that “they
said in school that I should tell[,]” he responded:

Well, yeah, but you don’t have to do everything they
tell you in school because the people in school don’t know everything about everything.Yeah, I know what they are saying and I know
why they are saying it, but there are some things, some things are better left
unsaid, and this is one of them.

Eggenberger told
the victim he was “scared” and tried to get her to promise she would not tell
her parents about the assaults.He also
promised to treat her with “respect, courtesy, friendship, cuz I love you.”

¶22It is not reasonably probable that a jury, after hearing both
this evidence and Eggenberger’s claimed new evidence about Prozac’s side
effects, would accept Eggenberger’s theory that he was incapable of
distinguishing between right and wrong when he assaulted the victim.The recorded call reveals that, contrary to
his later claims, Eggenberger remembered committing the assaults.This critically weakens Eggenberger’s claim
that his medications made him so confused he later had no memory of assaulting
the victim.Further, the call shows
that, less than one week after the last assault was committed, Eggenberger was
aware his conduct was wrong.[4]Throughout the call, Eggenberger used various
tactics in an attempt to convince the victim to keep the assaults secret,
including:justifying his own actions
and shifting blame to the victim by telling her he thought she liked the sexual
contact; telling the victim about the bad things that would happen if she
reported the assaults; telling the victim that, if she loved him, she would not
report the assaults; discrediting advice the victim received from school
personnel; and promising to treat the victim with respect in the future.Eggenberger would not have made these remarks
unless he understood that assaulting the victim was wrong.

¶23Eggenberger has therefore failed to satisfy the second, third,
and fifth prongs of the newly discovered evidence test.Thus, in addition to being procedurally
barred, his motion for a new trial was properly denied on the merits.

By the Court.—Order affirmed.

This opinion will not be
published.SeeWis. Stat. Rule
809.23(1)(b)5.

[1] All
references to the Wisconsin Statutes are to the 2011-12 version unless
otherwise noted.

[2] Eggenberger
also argued he was entitled to a new trial in the interest of justice.The circuit court concluded that argument was
not “properly before the [c]ourt[.]”Eggenberger does not raise an interest of justice argument on appeal. “[A]n issue raised in the [circuit] court, but
not raised on appeal, is deemed abandoned.”A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475,
491, 588 N.W.2d 285 (Ct. App. 1998).

[3] The
appellate record does not contain either the recording of the telephone call or
the transcript provided to the jury.Following
the State’s lead, we therefore rely on a summary of the recording found in the
criminal complaint.Eggenberger does not
argue that this summary is inaccurate or incomplete.Moreover, as the appellant, it was Eggenberger’s
responsibility to ensure that the record was sufficient for us to decide the
issues presented by his appeal. SeeState Bank of Hartland v. Arndt, 129
Wis. 2d 411, 423, 385 N.W.2d 219 (Ct. App. 1986).When an appellant fails to provide a complete
record for our review, we assume that any missing materials support the circuit
court’s decision.Id.

[4] The
assaults took place during mid-April and the first week of May in 1999.The telephone conversation between
Eggenberger and the victim occurred on May 5, 1999.Eggenberger does not argue that he stopped
taking Prozac between the date of the last assault and the date of the recorded
telephone call.Given the proximity of
the phone call to the assaults, no reasonable jury would accept Eggenberger’s
theory that he could not distinguish between right and wrong at the time of the
assaults.